The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiff Aundrey Green ("Green") brings claims pursuant to 42 U.S.C. § 1983,*fn1 asserting that Defendants violated his constitutional rights by using excessive force against him during his arrest and then attempting to cover-up the incident. Before the Court is Defendants' Motion for Summary Judgment.*fn2 For the reasons set forth below, summary judgment will be granted in part and denied in part.
On the night of April 22, 2002, New Jersey State Troopers Defendants Robert Parry ("Officer Parry") and Frederick Fife ("Officer Fife") pulled over Green for speeding.*fn3 During the traffic stop, Green did not have any identification and gave the police a false name when asked. Officer Parry testified that he asked Green to exit his car at that time because Parry smelled alcohol in the car.*fn4 After Green got out of the car, he was arrested for driving under the influence.*fn5 While it does not appear from the record that a field sobriety test was conducted, Green does not dispute that his blood alcohol level (measured within a few hours of his arrest) was over the legal limit in New Jersey.*fn6 Green also tested positive for marijuana.
Green was handcuffed and placed in the back of the police car. Up until this point he had complied with the police officers' directions and was not verbally or physically combative. However, once in the back of the car, Green's behavior changed. Green complained that he needed to go to the bathroom. Officer Parry told Green that he would have to wait until they got to the police station. Green admits that he then slipped his feet through his arms so that his handcuffed hands were in the front of his body instead of behind his body.*fn7 He further admits that he unzipped his pants with the intention of urinating in the back of the police car. (Green Dep. at 128)
Then, according to Green's version of events, Officer Parry opened the passenger door and grabbed Green by the throat, "choking" him. (Id. at 136) Green resisted by leaning away while Officer Parry ordered Green out of the car.*fn8 When Green did not cooperate, either Officer Parry or Officer Fife sprayed Green with mace at least two times. The officers again ordered Green out of the car but Green admits he wedged his feet under the front seat of the car, pushing himself into the back of the passenger seat so that the officers could not pull him out. (Id. at 134-35) During this time, the officers requested back-up and Defendant State Troopers Brown and Giuliano ("Officer Brown" and "Officer Giuliano" respectively) arrived shortly thereafter.
Officer Parry admits that he then punched Green and kicked him seven times while Green was still handcuffed in the back seat of the police car.*fn9 (Parry Dep. at 23-24) Officer Fife admits that he too punched and kicked Green in the back seat. (Fife Dep. at 14) According to Green, he was punched in the face and kicked in the ribs, as well as other parts of his body. Green also testified that Officer Fife hit Green in the head with a flashlight, causing him to bleed.*fn10 Green tried to protect himself by ducking down and covering his face.*fn11
Officer Brown tried to help Officers Parry and Fife subdue Green by trying to grab Green's arms and legs. Officer Brown testified that Green punched him in the process. Green was eventually removed from the car.
Once out of the car, Green testified that he was thrown to the ground, kneed in the back and kicked. According to Defendants, Green kicked Officer Fife in the knee.
The record is not clear about how the confrontation ended, but an ambulance soon arrived at the scene. Green was transported to the hospital where he was treated for two lacerations to his head, which required three stitches. He also suffered a minor abrasion to his leg.
After the incident, Defendant Schusler ("Schusler"), also a state trooper, conducted the internal investigation of the incident. He viewed the videotape of the confrontation and interviewed the officers who were present. Schusler created a report of his investigation but did not include the fact that some of the officers kicked and punched Green. None of the officers were disciplined as a result of the investigation.
Green asserts that Officers Parry, Fife, Brown and Giuliano violated his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights by using excessive force during his arrest or by failing to stop the use of excessive force; and that Schusler conspired with the other defendants to cover-up the use of excessive force.*fn12
II. "[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c))). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. ...